7 Ala. 251 | Ala. | 1845
— 1. The question made by the plea in connection with the declaration is, whether a note made by one executor of an estate, and also by a third person as his surety, payable to the executors of the same estate, can be enforced against the surety by a suit at law where the principal debtor, in his, character of joint executor, is one of the plaintiffs.
We limit the question to the precise state of facts shown by the record, that it may be seen that we do not intend to consider what the effect of such a note would be if the declara
The defendant relies on the decisions of this Court in Tindal v. Bright, Minor 103, and Ramsey v. Johnson, Ib. 418, as conclusive of this part of the case; and the chief distinction between this and those cases arises from the fact, that here the promise is made to the executors of an estate, whilst in those it was to individuals in their own right. On the other hand it is insisted, that as the intention is clearly manifested by the executor who made this note, to bind himself and his surety, they ought not to be discharged upon reasons which, when examined are found to be entirely technical, but that even these can be satisfied by permitting a suit against the surety, as he has a direct remedy under the statute, (Clay’s Digest, 532, § 8,) against his principal, even before the money is forced from him.
If the objections against this suit were merely technical, we should be strongly inclined, from our general course of decision, to disregard them and arrive at the substantial justice of the case, independent of technicality. But the question goes much beyond mere technical rules, and involves a principle of considerable importance, with relation to the rights of executors and administrators. An executor or administrator ma3r become a purchaser at his own sale, as seems to be settled by the decision of Brenner v. Oliver, 2 Stewart, 47, where he has au interest. It is not so clear, where a joint administration has been granted, or a joint executorship constituted and the representatives have jointly taken possession of the article committed to their charge, and thus become individually responsible for its proper administration, that one of the executors or administrators, through the medium of a purchase, can invest himself with a title to the property without the consent of his co-representatives. It would seem to be just and proper when a purchase was made by one, if the others were unwilling to extend their liability, that he might bind himself, and consequently his surety, to the others by an express promise to pay. But however this may be, we are satisfied that a security given by one executor in which he with his co-executors is a promisee, cannot be enforced even against his surety when he is one of the plaintiffs.
On the whole, therefore, though we have had some difficulty in coming to this conclusion, we are of opinion that the plea to which the demurrer was overruled presents a sufficient! bar to the case made by the declaration.
2. With respect to the evidence in support of the plea, we do not see that any question arose as to the identity of one of the plaintiffs as the principal in the note. The proof adduced was certainly competent, whether oral or written, and its sufficiency was for the jury to consider. The objection to the proof of this matter by the admission of two of the plaintiffs on the record, does not seem to be pressed, and therefore is not considered.
3. It is lastly urged, that the judgment is. de bonis propriis, when it should have been de bonis iestatoris. In Thompson v. Start, 1 Taunt. 322, the test of the proper judgment is said
Judgment corrected so as to render costs de bonis testatoris? and affirmed in all other respeets.